There was a real-life, old-timey talkin' filibuster on the floor of the Senate Wednesday, courtesy of Sen. Rand Paul (R-Ky.), who interrupted the confirmation process of would-be CIA Director John Brennan to bring attention to, and seek a remedy for, the lack of a specific legal framework governing whether or not an American citizen not deemed an "imminent threat" may be the target of an extra-judicial killing, while on American soil, without something that resembles "due process."
It was, actually, a day full of ironies on the filibuster front. Prior to Paul embarking on his oratorical endurance test, there was a silent filibuster of Obama federal appeals court nominee Caitlin Halligan in which no attempt was made to publicly articulate a case against her. In the aftermath of Paul's filibuster -- which proceeded well into the night before his bladder famously cut short the effort -- this juxtaposition has apparently stoked (or, perhaps, restoked) thoughts on the matter of filibuster reform in the mind of Senate Majority Leader Harry Reid (D-Nev.), who spoke these thoughts aloud on the Senate floor today:
My Republican colleagues love to extol the virtues of regular order. If only we could get back to regular order, they say, and the Senate would function again. Yesterday we saw both sides of that. On the one hand, my colleagues did practice regular order. On the other, they didn't. Let's take the one they didn't. They demanded a 60-vote threshold for confirmation of a very qualified nominee, Caitlin Halligan. The Republicans once again hid behind a cloture vote, a filibuster by another term, to prevent a simple up-or-down vote on this important nomination. They took the easy way out.
On the other hand, one Republican senator did return to regular order and as his right he spoke for as long as he was able to speak. And, Mr. President, that is a filibuster. After 12 hours standing and talking, this is how Senator Paul ended his filibuster, and I quote, "I would go for another 12 hours to try to break Strom Thurmond's record, but I have discovered there are some limits to filibustering, and I am going to have to take care of one of those in a few moments here." I have been involved in a few filibusters, as Rand Paul did yesterday. And what I have learned from my experiences in talking filibusters is this: To succeed, you need strong convictions but also a strong bladder. It's obvious Senator Paul has both.
Mr. President, we should all reflect on what happened yesterday as we proceed with other nominations, including a lot of judicial nominations. This can be a Senate where ideas are debating in full public view and obstruction happens in full public view as well, or it can be a Senate where a couple senators, obstruction from behind closed doors without ever coming to the Senate floor.
Reid strikes a contrast with Sen. John McCain (R-Ariz.), who while defending the ever-expanding power of the executive branch (not to be confused with a defense of President Barack Obama), made the opposite characterization -- explicitly calling the actions that Paul undertook a reason why the American people should be embarrassed about what's been going on in the Senate. "What we saw yesterday is going to give ammunition to those who say the rules of the Senate are being abused,” said McCain, briefly interrupting his epic, six-month yargle-bargle about stopping everything until he gets answers on the September 2012 Benghazi attacks to chide his colleague for speaking aloud.
But there's a guiding principle that ties together Reid's preference for regular order, and the fact that so many found what Paul was doing yesterday compelling to witness, if not agree with. It's the fact that unlike the silent filibuster, legislators who take to the floor to offer such stemwinders have to manifest effort and articulate a point of view. They can't just dump their reasoning behind a procedural blind. Dave Weigel captures Sen. Jeff Merkley (D-Ore.), articulating this point perfectly.
“If a person’s going to make a stand on a nomination, this is the way to do it—the way Sen. Paul is doing it,” Merkley said. “The American people can watch this and weigh in on whether he’s a hero or a bum. That’s reasonable. That honors the traditions of the Senate.”
Of the Halligan filibuster, Merkley wasn't as charitable: “That took no time or energy from any member,” Merkley said. “It had no impact on the American people. It had no accountability."
What Paul did yesterday fittingly articulated Merkley's point. Paul sought to put his contention on trial, in public. He did his homework. He brought a sheaf of supporting materials to make his case. It required the willingness, on Paul's to put his nose to the grindstone and do some real, intellectual work, but more importantly, it required Paul to be willing to risk the possibility of losing the argument -- with his colleagues, and with citizens.
And that "hero versus bum" meter that Merkley mentioned could be observed in real time during the filibuster -- when Sen. Ron Johnson (R-Wisc.) glommed on to Paul's filibuster to attempt to make some completely off-topic remarks about the deficit, observers took to Twitter with calls to give Johnson the hook. On the other hand, Sen. Dick Durbin's decision to join the debate, and argue a different point of view, yielded the product that the Beltway media claims to want most of all -- respectful, polite debate. This is important to mention, by the way -- the talking filibuster isn't intrinsically obstructive. It invites debate. But you have to come to play.
Reid clearly desires more of that regular order, and more ideas being put on trial in full view of the public. But it makes you wonder why Reid didn't do more to secure these ideas and rearrange procedural norms back when he had the chance.
Let's recall that mere months ago, when there was an opportunity to make it so that the filibustering side had to carry the burden of manifesting some amount of effort to carry the day, Reid passed on the chance and, in a deal brokered with Senate Minority Leader Mitch McConnell, re-enshrined the silent filibuster in exchange for small-ball reforms -- the most significant of which merely changing the "amount of debate time that would follow a cloture vote from 30 hours to four." As Rachel Maddow pointed out, "The problem in the Senate has been that they are not able to get anything done. The improvement on that today is that now, they're not going to be able to get anything done faster."
Right now, there are Democrats (Merkley among them) who want a redo on filibuster reform. Reid's remarks Thursday offer them some dim hope that he'd be willing to revisit the issue. The question then becomes how. Every option that Reid had open to him back in January to change the rules of the Senate remain open to him now. The only reason that the commencement of the new Senate session was popularly perceived as the one time filibuster reform was conceivably obtainable is simply because in the polite traditions of the Senate, it's considered to be less of a "nuclear option" to alter the rules from the outset.
That puts Reid in a bit of a bind, if he wants to do more than just lament the way the world's most deliberative body has ground itself into dysfunction, and use Paul's filibuster as an example of the way things could be. On the one hand, Reid has a preference for the Senate's "regular order." On the other hand, the Senate's unofficial traditions hold out against mid-session changes to procedure. One way or the other, something has to give, and Reid will have to decide which aspect of Senate culture writ large means the most to him.
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